Academic journal article
By Moroney, Brian; Nee, Christopher C.
American Criminal Law Review , Vol. 37, No. 2
This Article surveys the criminal penalties utilized to protect workers in the areas of occupational safety and employment practices. These penalties are part of larger regulatory measures enacted to ensure worker safety, eliminate labor conditions detrimental to the nation's commerce and the general welfare of workers, and provide labor unions greater protection from corrupt union and management officials. Section II of this Article discusses criminal sanctions relevant to worker safety under the Occupational Safety and Health Act ("OSH Act"),(1) state criminal law, and the Federal Mine Safety and Health Act ("FMSHA").(2) Section III analyzes criminal sanctions applicable to employment practices under the Fair Labor Standards Act ("FLSA").(3) Section IV discusses the Labor Management Relations Act ("LMRA") which prohibits payments and loans by employers to employees or labor organizations.(4) And finally, Section V reviews section 501(c) of the Labor-Management Reporting and Disclosure Act ("LMRDA") which prevents appropriations of union funds for non-union purposes.(5)
II. WORKER SAFETY
This Section discusses the criminal laws relevant to worker safety. Part A analyzes the OSH Act,(6) by examining the offenses of a willful violation of a specific standard resulting in an employee death and a false representation. In addition, this Section reviews the potential penalties for these offenses and the degrees of enforcement. Part B discusses state criminal law and its effectiveness in deterring violations of the OSH Act. Part B also examines current occupational safety and health reform efforts. Part C discusses the FMSHA,(7) including offenses and current reform efforts under the law.
A. Occupational Safety and Health Act
Congress enacted the OSH Act to ensure worker safety after increasing numbers of employee deaths and injuries in the late 1960s.(8) The OSH Act requires employers to furnish their employees with a working environment free from recognized hazards.(9) The statute also requires compliance with specific occupational safety and health rules promulgated by the Secretary of Labor.(10) Violation of these standards may lead to criminal sanctions, in addition to the civil sanctions contemplated by the OSH Act.(11)
While the OSH Act provides for criminal sanctions in three situations, only two have been regularly enforced: (1) when an employer's willful violation of a standard, rule, order, or regulation causes the death of an employee;(12) or (2) when an employer makes a false representation regarding OSH Act compliance.(13) The third situation, criminal sanctions for any person giving advance notice of an inspection,(14) has not been criminally prosecuted.(15) Additionally, employers may be subject to both civil fines and criminal sanctions in separate prosecutions for the same violation.(16)
1. Employer's Willful Violation of Standard Causes Death
a. Elements of the Offense
If (i) an employer (ii) willfully violates (iii) a specific standard, rule, order, or regulation, (iv) which causes the death of an employee, criminal sanctions may ensue.(17)
An "employer" is statutorily defined as a "person engaged in a business affecting commerce who has employees."(18) In addition, corporate officers in their individual capacities may also be criminally sanctioned under the OSH Act.(19) In the Third, Fifth, and Seventh Circuits, a "mere employee" who is not an officer cannot be liable as an aider and abettor of the employer's criminal liability.(20) The potential liability of a third party or employee, acting in a capacity separate from his or her role as an employee, who aids and abets an employer, has not been resolved.(21)
In multiple employer workplaces, the employer who creates or controls a hazard may be liable to employees of the other employers in that work place, which is known as the multi-employer doctrine. …